Are You Just Down the Street From a Lawsuit?

As I continue to travel the country teaching industry providers about the legal issues they face and how to protect themselves, certain questions come up with predictable consistency. For instance, once we discuss special relationships, absolute duties, and the consequences of breach, providers always seem to want to know one thing:

If there is an absolute duty to respond, don’t we open ourselves up to liability when we stage down the street from a dangerous setting while police secure the scene?

I love that question because it means they‘ve been paying attention.

If nothing else, law school trains “normal” people to answer a question with another question and never commit to an answer until all of the facts have been considered. They’re not a very spontaneous bunch. Therefore, I will predictably answer the question of “when to stage” with the following: it depends.

Zepeda v City of Los AngelesThe answer regarding liability and staging lies within the landmark case of Zepeda v the city of Los Angeles. It began on February 1988, when a man by the name of Robert Rosito shot Jerman Zepeda in the neck on a chilly Los Angeles night. Zepeda lay bleeding while bystanders called 911. A city of Los Angeles rescue ambulance responded, along with the Los Angeles Police Department and other resources. The paramedics arrived before the police were present to secure the scene. According to the court records, “even though they were in no apparent danger … [paramedics] refused to render medical attention or otherwise assist [Zepeda] until the police arrived at the scene.” Zepeda died from the gunshot wound and his parents filed a suit against the city for the wrongful death of their son.

In the complaint against the city, the Zepedas contended that the paramedics breached a “duty to come to the aid of the decedent or at least make inquiry as to the status of the decedent.” They associated this breach in duty with negligence, claiming (essentially) that by virtue of being paramedics employed by the city for the purpose of responding to emergency calls, there was a “special relationship” that established a duty to render immediate aid to their son, danger notwithstanding.

It may surprise you to know that, generally speaking, a regular person has no duty to come to the aid of another. Absent some special relationship, one who has not created a peril is not liable for simply failing to assist or protect someone else. In fact, an Olympic swimmer can stand idly on the beach and watch someone drown without facing legal liability — at least on Earth anyway. He may have some explaining to do when he shuffles off this mortal coil.

Now, on the other hand, if the Olympic swimmer calls out, “I’ll save you” and jumps in the water, he becomes committed to the situation. So if he then decides to abandon the rescue because the water is too cold or for some other reason, he is still liable.

Likewise, language from the California Supreme Court applied to this case allows us to infer that a paramedic, simply by becoming a paramedic, does not insulate himself from any of the basic duties that everyone owes to other people, but neither does he assume any greater obligation to others individually. The only additional duty undertaken by accepting employment as a paramedic is the duty owed to the public at large.

In simple terms, an off-duty paramedic can be as selfish as he wants (for the most part), but an on-duty EMS provider has a “special duty” to respond, treat and transport those in need, within reason. An EMS provider has the duty to act as would any reasonable EMS provider with the same level of training and experience, in the same locality, and under similar circumstances.

Taking it back to the Zepeda case, was there a special duty for the paramedics to act? Or was their decision to stage reasonable? Let’s take a look:

The paramedics involved did not create the “peril” to Zepeda — meaning: they did not shoot him.

The paramedics did not voluntarily assume a “special duty” to assist him. In accordance with department policy; they did not willingly enter a known and non-secure zone of danger (read: gunfire).

The paramedics made no promise or statement to induce reliance prior to their physical arrival to the patient — they waited safely out of range.

The paramedics did not increase the risk to Zepeda by being present, nor did they create a risk that wouldn’t have existed otherwise.

Negligence requires the concomitance of duty, breach, causation and damages. Here, the paramedics could not have negligently performed an act they had not chosen to undertake it in the first place. The paramedics would have only been bound by a special duty if they had approached the patient and begun an assessment.

As if the negligence argument is not enough, California’s Government Code section 820.2 states that:

“Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”

Certainly it is within a paramedic’s discretion whether or not to enter the scene of a shooting, where the shooter is unaccounted for and the circumstances are not yet known. Imagine if paramedics had just stormed the halls of Columbine High School.

There are those who will argue, as the family did, that there is a mandatory duty to act when a person calls 911. However, Government Code section 815.6 states:

“Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.”

The paramedics in this case did act. They received the call, responded quickly, and were prepared to manage the call so long as the scene was safe. Is it reasonable to have an unarmed, unprotected paramedic crew enter a shooting scene that has not yet been secured? I don’t think so, and neither did the court.

In response to the lawsuit, the city moved for a dismissal based on the points that we have discussed. The court agreed that the paramedics were not liable, as did the appellate court. After all, the paramedics were not actually responsible for shooting Zepeda.

Although this is a state case based on California law, most jurisdictions have similar provisions for the safety and protection of EMS providers. I highly suggest that you learn the laws that apply in your jurisdiction — and follow them.

For now, the answer to the question of “when to stage” remains the same: it still depends. At least now you know what it depends on. Reasonableness, good faith and proper conduct will usually be enough to keep you safe.

David Givot, Esq., graduated from the UCLA Center for Prehospital Care (formerly DFH) in June 1989 and spent most of the next decade working as a Paramedic responding to 911 in Glendale, CA, with the (then BLS only) fire department. By the end of 1998, he was traveling around the country working with distressed EMS agencies teaching improved field provider performance through better communication and leadership practices. David then moved into the position of director of operations for the largest ambulance provider in the Maryland. Now, back in Los Angeles, he has earned his law degree and is a practicing Defense Attorney still looking to the future of EMS. In addition to defending EMS Providers, both on the job and off, he has created TheLegalGuardian.com as a vital step toward improving the state of EMS through information and education designed to protect EMS professionals - and agencies - nationwide. David can be contacted via e-mail at david.givot@ems1.com.

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